Appeal No. 2002-2063
Application No. 09/635,093
The declaration submitted during prosecution of the instant
application bears the serial number of that parent application to
this one (08/742,945). Therefore, de facto and de jure those
arguments relate to the claims as were pending then, not the
instantly pending claims. It is, therefore, difficult to assess
the impact of the trade journals and the commercial success of the
cold box process on the patentability of the instant claims, which
recite a relative proportion of FAME with a component which need
not be present.
We note that secondary considerations are essential
components of the obviousness determination. See In re Emert, 124
F.3d 1458, 1462, 44 USPQ2D 1149, 1153 (Fed. Cir. 1997) This
objective evidence of nonobviousness includes copying, long felt
but unsolved need, failure of others, see Graham v. John Deere
Co., 383 U.S. 1, 148 USPQ 459, 467 (1966), commercial success, see
In re Huang, 100 F.3d 135, 139-40, 40 USPQ2D 1685, 1689-90 (Fed.
Cir. 1996), unexpected results created by the claimed invention,
unexpected properties of the claimed invention, see In re Mayne,
104 F.3d 1339, 1342, 41 USPQ2D 1451, 1454 (Fed. Cir. 1997); In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2D 1934, 1936-37 (Fed. Cir.
1990), licenses showing industry respect for the invention, see
Arkie Lures, Inc. v. Gene Larew Tackle, Inc., 119 F.3d 953, 957,
43 USPQ2D 1294, 1297 (Fed. Cir. 1997); Pentec, Inc. v. Graphic
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